Decision
Mrs X & Mr X c/o Y Solicitors and Wexford County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-61602-K2Q3B1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-61602-K2Q3B1
Published on
CASE NUMBER: OIC-61602-K2Q3B1
Whether the Council was justified in refusing access to various records relating to the applicants’ application for housing/social housing supports
13 April 2022
References to the applicants in this decision includes references to their solicitors, who acted on their behalf throughout the FOI process. By way of general context for some comments in this decision, there is ongoing litigation between the applicants and the Council. I understand that this relates to the matters the subject of the FOI request. I also understand that two particular Council staff dealt with the applicants’ housing issues, one of whom has retired and the other of whom is now employed elsewhere in the public sector.
In a request dated 25 September 2019, the applicants sought access to records relating to their application for housing/social housing supports, which they said should include 10 particular categories of record. In a decision dated 3 December 2019, the Council part granted the applicants’ request. It released records in full and in part and refused the remainder under various provisions of the FOI Act. The applicants sought an internal review on 17 December 2019, including in relation to the adequacy of the Council’s searches for relevant records. The Council’s internal review decision of 16 January 2020 affirmed its decision on the request. It also said that further records do not exist and relied on section 15(1)(a) of the FOI Act in this regard. On 3 February 2020, the applicants sought a review by this Office, of parts of the Council’s decision.
I apologise to the applicants for the length of time that this review has taken. Some of the delay resulted from personnel changes within this Office. However, much of the delay is due to the Council’s poor engagement with this review and the quality of its submissions regarding its searches for records in particular. This Office’s Investigator ultimately wrote to the Council on 18 November 2021. She told it that its responses did not provide a basis for this Office to decide on its application of section 15(1)(a) and asked it to reply to a number of questions within a week. The Council acknowledged her letter but no reply was received. Accordingly, on 21 December 2021, I issued a notice to the Council under section 45 of the FOI Act, requiring its response to the Investigator’s letter. I am disappointed with the Council’s response. For instance, while purporting to answer the Investigator’s queries, the Council refers to information that it had already provided, without any further comment or elaboration. The reply also gives vague answers to questions that sought very specific information.
It is not in the applicants’ interests for me to prolong the review further by continuing to engage with the Council in this regard, with varying levels of success, which I set out below. It is my view that, at this stage, issuing a decision is the most efficient way in which a resolution can be reached.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Council, An Garda Síochána (AGS) and the applicants, including the Investigator’s letter to the applicants of 29 October 2021. I have also had regard to the contents of the records at issue and to the provisions of the FOI Act.
The applicants confirm that this review comprises the two issues set out in their application to this Office. The first issue is the Council’s effective refusal of records covered by categories 3-6, 8 and 9 of the request on the basis that they do not exist. The second issue is the Council’s refusal of access to records 17, 21-23 and 34 and the attachments to records 3 and 11.
The Council confirms that record 23 is in fact the attachment to record 3 and that the attachment to record 11 is scheduled as record 12. The Council effectively refused record 12 under section 37 of the FOI Act (personal information) but now says that it relates to parties other than the applicants and was placed on their file in error. I note that the applicants have no comment to make in the circumstances. I have examined record 12 and am satisfied that it concerns other individuals with the same surname as the applicants. Thus, I accept that the record does not relate to the applicants and is not covered by their request. I do not intend to consider record 12 further.
Accordingly, the scope of the review is confined to whether the Council’s decision in relation to the remaining issues set out in the OIC application is justified under the provisions of the FOI Act. It does not extend to examining, making findings on or taking account of the Council’s dealings with the applicants generally, including its handling of their FOI request or application for housing.
Section 13(4) of the FOI Act requires me to disregard any reasons that the applicants have, or may have, for making their FOI request.
Section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the withheld information and of the reasons for my decision are somewhat limited in this case.
It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the FOI Act places no constraints on the uses to which the information contained in those records may be put.
Finally, in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5 (the eNet judgment), the Supreme Court said that “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.” I also note that, in the Supreme Court case of Sheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that “[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
Findings - whether further records exist (section 15(1)(a))
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not the FOI body is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist.
It is not the function of this Office to look for records. Furthermore, the FOI Act requires the Council to take reasonable steps to search for records, rather than exhaustive searches.
Finally, this Office has no role in determining the substantive matters of the applicants’ housing/ assistance claims. It should be noted that this Office’s requests to the Council for clarification of certain comments in the records was for the sole purpose of considering whether such clarification could prompt further potential searches. The Council was unable to provide the relevant clarification. This Office has no role in interpreting the Council’s statements.
Searches – general submissions
The Council says that housing records, including applications for social housing supports are kept electronically and in paper format. Electronic records are stored on iHouse, which is a computer system used by most Local Authorities. Applicants are identified through this system using either their date of birth or PPS number. Paper files are kept in the Housing Office in the Municipal District where an applicant currently resides. There are five Area Housing Officers, each of whom holds the housing files for their areas of responsibility.
The Council says that on receipt of an FOI request, an email is sent to all supervisors, Area Housing Officers, Architect, Social Workers, Housing Liaison Officers, Executive Engineer and SEO requesting any records held by the individual be forwarded to the Decision Maker in Housing. This includes paper and electronic files.
The Council says that it identified and examined files relating to the applicants’ housing application and the file for the property specified in their request. It says that it also searched all files of other parties with the same surname to rule out the possibility that relevant records were misfiled.
Further to the Investigator’s letter to them of 29 October 2021, the applicants queried whether the Council had searched iHouse. The applicants’ legal advisor is familiar with the format of records kept on the iHouse system and notes that the released records do not seem to contain similar such documents.
Accordingly, the Investigator’s letter to the Council of 18 November asked it to confirm that it had searched iHouse and released all relevant records, and to provide examples of such records. She also said that the Council should explain why it had not searched the database if this was the case.
The Council’s response says that it has “again thoroughly checked [its] records” and found two further records on the Housing file. It says that the records were filed after the applicants’ FOI request was processed. I understand that it has released the records to the applicants.
In my view, reasonable steps in this case should include searches of iHouse for records covered by the request. Although invited to, the Council does not confirm that it took such steps, nor does it describe their outcome. It does not refer this Office to any examples of records found on iHouse amongst the material identified to date (that is, other than one record referred to later in this decision which the Council only provided during the review in support of its submission). In the circumstances, I have no reason to conclude that the Council carried out a reasonable search of this database.
The Council’s early correspondence with this Office referred to “our solicitors”. One of the Investigator’s initial queries to the Council was whether its “legal section dealing with the court case” holds relevant records. The Council replied that it “do[es] not have a legal section.” The Investigator then highlighted the Council’s own references to a legal advisor, whom she said was presumably engaged under a contract for service, and asked if the advisor had been asked to search for records. The Council said that the solicitors concerned were not “formally asked to search”, that “all records held by [the Council] that were part of this FOI request were forwarded” to the solicitor, and that any other records held by the solicitor would relate to the ongoing litigation post-request.
The Council’s narrow response to the Investigator’s query about the “legal section dealing with the court case” is totally unsatisfactory. I would expect it to understand that the query encompassed any internal or external legal advisors. Furthermore, it is reasonable to expect the Council to ask its advisors to search for relevant records, even if they are copies of records also held by the Council. For instance, it may be that the advisors can find records that the Council’s searches of its own records did not locate. The matter of whether any records held by the advisor are exempt under the FOI Act’s substantive provisions does not mean that searches for such records should not be carried out.
Submissions – further records covered by categories 3, 4, 5, 6, 8 and 9
Records concerning any assessment of the applicants’ suitability for the purpose of allocating a tenancy to them of a certain house or any other house (category 3)
The applicants say that the Council proposed to allocate the tenancy of a particular house to them, as per comments in the released record 50. Record 50 says that the house was bought for a “specific” but unnamed family, whose circumstances are described generally. The Investigator asked the Council to clarify references in various records, including in record 50. On each occasion, she emphasised that such queries were not intended to probe the applicants’ entitlements to housing assistance, but were for the sole purpose of considering the Council’s reliance on section 15(1)(a).
The Council says that applicants for Social Housing Supports include up to three Areas of Choice. When a vacancy becomes available in an area, all applicants who have specified the area as an Area of Choice are included for consideration, subject to the property being the appropriate size. On allocation of a house to a particular applicant, the Area Housing Officer prepares an allocation sheet making a recommendation, which is counter signed by the Administrative Officer. An Executive Order is then prepared to effect the allocation and a formal letter of offer issues to the applicant.
It is the Council’s position that no such documents exist for the allocation of the specified house to the applicants. It says that the matter never reached allocation stage, as evidenced by a comment in the released record 18, which concerns the Council’s requirements further to which the applicants may be “consider[ed]” for tenancy of the relevant house. The Council says that there were a number of other families to which the comment in record 50 could refer and that because of staff changes, it is unable to identify the particular family concerned.
The applicants say that the comment in record 50 is so particular as to make their identification as the specific family inevitable. They say that the house did not represent a general vacancy within the Council’s housing stock, which would have been allocated in the manner described by the Council, but that it was a specific house acquired for a specific family.
The Investigator’s letter of 18 November 2021 asked the Council to respond to the applicants’ arguments. In particular, she noted its previous confirmation that the property file for the named house had been searched. She asked whether other files relating to the purchase were held e.g. regarding the sanction of funding and if such files had been checked to see if they held records relevant to category 3. The Council replies only that record 57 relates to the purchase of the property and says that the other query is addressed in its internal review decision.
I have no reason to doubt the Council’s position regarding the records that are normally created where a house is being allocated, and that it has not located such records regarding the allocation of the specified house to the applicants. I also note that the Council has searched the property file for the house, as stated in the internal review decision.
Record 57 was withheld in full. Even if the applicants had appealed its refusal, the requirements of section 25(3) mean that I can only describe it as being concerned with the purchase of the relevant house. However, neither record 57, the internal review decision nor the Council’s other correspondence confirm that record 57 is the only record held by the Council concerning the house purchase, or whether other files relating to such matters as funding etc. are held.
The applicants do not accept that the Council cannot identify the family referred to in record 50 and say that the wording in record 18 reinforces their view that the Council intended for them to occupy the house. They say that, because they were subject to a deferral under a particular provision of legislation providing for refusals to allocate or deferral of an allocation, the Council must have intended to allocate a house to them. They say that the Council official who moved to another local authority has been available to the Council for the litigation and should similarly be available to clarify matters arising in this review.
I have already explained that this review is concerned with the reasonableness of the Council’s steps to search for records that it holds. It is therefore not the case that this Office would expect exhaustive steps to be taken.
The Council says that the applicants’ comment, on the significance of the legislation under which their application was deferred, is addressed in its email to this Office of 5 October 2021. It does not elaborate. I assume that the Council is referring to its email of 12 October, rather than its email of 5 October, which is a general acknowledgment. The email of 12 October explains that even where a house is purchased, all applicants who specified the area concerned as an area of choice are included for consideration, and that the applicants were one of a number of families in mind for the relevant house. In the absence of further explanation from the Council, the email of 12 October does not appear to clarify matters. However, I see no need to pursue this particular issue given that this Office does not have a role in determining the substantive matter of the applicants’ housing claim.
Records concerning any representations made to any officer or servant or member of the Council in relation to the allocation of a certain house to the applicants (category 4) and records of any responses (category 5)
The Council says that it does not hold, for the purposes of the FOI Act, any records relevant to parts 4 and 5 that may be held by Council members. The applicant does not accept the Council’s position. I will deal with this matter later in my decision.
However, aside from any records that may be held by elected members, categories 4 and 5 cover any representations sent to the Council, including those forwarded to it by elected members, and any replies issued by the Council. Having considered their contents, records 20-22 are in my view covered by category 4. No records appear to me to be relevant to category 5.
In inviting relevant details, the Investigator said to the Council that “representations” would encompass formal correspondence and more informal contacts such as emails, letters etc., while replies could be in writing or contained in notes of verbal discussions. The Council says that its searches included all records of and replies to representations, including computer records, email replies and letters placed in files. It says that in many cases verbal replies are made by telephone or in meetings between the Council and relevant representatives. Its position is that it has carried out reasonable searches for records covered by categories 4 and 5 and/or that further such records do not exist.
The applicants maintain that the Council’s searches were inadequate, particularly in relation to emails generated by the two former staff. They do not accept that the Council did not acknowledge or respond to what they say are significant emails.
I see no reason to dispute the Council’s position that it often replies verbally to representations and that its searches encompassed all records of and replies to representations. However, this is not the end of the matter. The Investigator’s letter of 18 November 2021 referred to her understanding that the two former Council staff had dealt with the applicants’ housing application, and asked for confirmation that their emails had been searched for representations and replies.
The Council says that this was addressed in its letter to this Office of 15 May 2020. I am not satisfied that this is the case. The relevant letter describes how the Council searched the relevant email accounts in a separate and limited context i.e. for records concerning a meeting with the applicants on 29 August 2019. I am not satisfied that those searches would be sufficient to identify any relevant representations that the staff may have received or replied to.
Records concerning any assessment carried out re: the applicants under the Council’s Anti-Social Behaviour Strategy 2018-2024; any consideration thereof including all correspondence with the applicants and/or minutes of meetings with them (category 6) and records concerning any suspension/deferral/removal or any other measure taken by the Council in relation to the applicants’ housing application for any period of time (category 8)
The applicants say that they were suspended from the housing list in or around August 2019 on the basis of alleged anti-social behaviour. They say they expect records to exist relating to the assessment of that alleged behaviour by reference to the Council’s policies. It has been difficult to establish the underlying facts relating to these matters. The Council’s responses to this Office’s queries have been unclear and unhelpful, as I set out in detail below.
The Council’s internal review decision states that “[t]here is no reference to any suspension from the housing list for the reasons stated.” It goes on to describe the circumstances relevant to the applicants’ suspension in 2014. It says that this matter appears to have been resolved given that, in January 2020, the applicants were being housed in a Council property and at May 2019, had been determined to be eligible for Social Housing. It says that records “of the suggested suspension do not exist.”
The Council’s letter to this Office, dated 27 February 2020, accompanied the subject matter records covered by this review. It reiterates that “there are no records that reference the suspension of the requesters from the Housing List.” The Investigator to whom this case was initially assigned asked the Council to confirm whether there is a single Housing List, whether the applicants are still on it and, if not, whether there are any notes relating to why and when they were removed from it. The Council’s reply of 15 May 2020 says that its housing list is electronic and that there “is no record of the [applicants] being removed/ suspended from the housing list.”
On 16 August 2021, the Investigator to whom the case was reassigned sought to further clarify the Council’s position in relation to parts 6 and 8. She asked various questions, including the steps that would usually be taken, and records created, by the Council when considering the suspension of someone from the housing list, and the searches carried out for such records. She asked the Council to describe what assessments that it might carry out further to its Anti-Social Behaviour Strategy 2018-2024 and to state whether any were carried out in this case. She said she understood the Council’s position to be that the applicants had not been suspended, and asked it to summarise all events arising from their application for housing/housing supports.
The Council’s response of 20 September 2021 refers back to its comments of 15 May 2020 and states that “there was no record of the clients being removed/suspended from the housing list.” It refers to a letter dated 7 August 2020 which it had issued to the applicants, but did not explain why this letter had been issued, or comment further on it or its implications for this review. It includes extracts from the Council’s Anti-Social Behaviour Strategy 2018 – 2024 but does not comment further on them or on their relevance to the review. It outlines certain steps it says it takes regarding all applicants who are under consideration for the allocation of housing, confirms certain matters, and goes on to refer to its rights under the Anti-Social Behaviour Strategy 2018 – 2024. It does not comment further. Regarding the request for a summary of events arising from the housing application, the Council says only that the applicants remain on its housing supports list and continue to be considered for all suitable vacancies arising in their chosen area. It makes no comment on the Investigator’s then understanding of the Council’s position regarding the suspension of the applicants.
However, the Council omitted to attach the letter of 7 August 2020 to the above response. The Investigator asked for a copy and asked Council to confirm if its response of 20 September 2021 meant that the applicants had been suspended from the housing list. On 12 October 2021, the Council forwarded a copy of the letter of 7 August 2020 to this Office. Its covering email explains the reason “to suspend the applicants” and says that the staff who made that decision no longer work for the Council. The letter of 7 August 2020 refers to the application for housing supports and confirms the expiry of a “deferral/suspension period”. It sets out the duration of the suspension, and the dates of when it was imposed, to when it was back-dated and when it expired. It confirms that the application for housing supports remains under consideration.
In further contacts with the Investigator, the Council confirmed that the letter of 7 August 2020 had been written after the departure of the two relevant staff. The Investigator then asked the Council to confirm what records its author had regard to when drafting it, and/or who might have instructed him to write the letter. She also asked how the Housing List had reflected the suspension. The Council replied that the letter had been written further to legal advice. It did not explain how the author was able to include such definite dates, nor did it reply to the query about the Housing List.
The Investigator’s letter of 18 November 2021 referred to the Council’s position that it had not asked its legal advisor if it holds records covered by this request, noting the specific nature of the letter of 7 August 2020. She said that, without further detail from the Council as to the circumstances in which it was written, one could only assume that it had to be based on some record of the relevant events. She asked the Council to confirm what records the Council and/or its legal advisor had regard to when drafting the letter of 7 August 2020.
The Investigator also asked for details of how this deferral/suspension was reflected on the Housing List and in any records issued to the applicants notifying them of the suspension at that time. She requested that the Council confirm her understanding that the only records that were created regarding any assessment under the Council’s Anti-Social Behaviour Strategy 2018-2024 are the Garda clearance records.
In response, the Council repeated that it had sent the letter on advice from its legal advisors and that these hold a copy of records relating to the FOI request. It says that iHouse did not reflect any suspension. It refers to a particular extract from the database, which it provided to this Office. I understand it has now also released this to the applicant. It says that it has released all records held in relation to any assessment under the Council’s Anti-Social Behaviour Strategy 2018-2024.
It appears to be the Council’s position that it has located no records showing any consideration of the Garda Clearance Reports, or related correspondence with the applicants and/or minutes of meetings held with them about this. It also appears to be its position that it holds no records concerning any deferral/suspension of the applicants’ social housing application. However, its responses do not specifically say this. More importantly, while the letter of 7 August 2020 is not covered by the request, the Council does not explain how its author or the legal advisor was able to include such detail without access to records containing that information.
Records concerning any meetings between any officer or member of the Council and any other party and in which the allocation of a house to the applicants was discussed (category 9)
The application to this Office says that the proposed allocation of the specified house was withdrawn by the Council by telephone on 27 August 2019 and then reaffirmed at a meeting on 29 August 2019. The applicants say one of the two now-former staff who were present at the meeting took notes.
The Council reiterates its comments that the matter never reached allocation stage. Its position is that only the two former staff were present at the meeting and therefore that current housing section staff are unable to recall anything about the meeting or related records. The Council’s letter to this Office of 15 May 2020 deals in part with searches of the email accounts of the former staff for records relating to the meeting. It also says that it received no response to its initial emails to the two former staff requesting any notes that they took at the meeting.
The Council explains why it was unable to telephone the retiree. Its more recent correspondence confirms that it has not contacted him since. I am satisfied that the Council took the reasonable step of contacting the former employee and I see no reason to direct it to take further action in this regard.
The Council says that it telephoned the other former staff member, who agreed to check old diaries and has confirmed that he holds no notes.
The Investigator subsequently asked the Council whether the latter former staff member had been asked to comment on the specific assertion that he took notes and to explain what became of any such notes. The Council referred back to the individual’s confirmation that he holds no notes. It did not respond to the Investigator’s direct question about the taking of notes, or otherwise question why establishing this might be an unreasonable step for the purposes of section 15(1)(a) of the FOI Act.
As a result, the Investigator’s letter of 18 November 2021 asked the Council to answer her question. She explained that the fact that a person does not hold records at a point in time does not, of itself, mean that he or she did not take notes that were subsequently filed or disposed of, etc. In response, the Council says that this “has already been addressed in letter dated 15 May 2020”. It does not elaborate further.
I have no reason to dispute the Council’s position that the former employee says he holds no notes, which set out in its letter of 15 May 2020. However, the letter does not address the issue of whether such records were created, as asserted by the applicants, and what became of them. It is unacceptable that the Council does not answer the Investigator’s direct questions. In my view it is reasonable to expect the Council to ask the employee to comment, given that the response could enable a further search to be carried out.
The Council says that its IT department searched for emails between the two former staff using the applicants’ surname, initially for a few days before and after 29 August and, further to the Investigator’s queries, from 9 to 29 August 2019. It says that it found no relevant emails.
The applicants say that they could have been referred to in such emails by reference to variations of their names or by other indirect terms. They say that all emails between the two staff should be examined and query why the search was limited to the above dates. They say that further searches should be carried out up to the date of the request, to capture any emails subsequent to the meeting that might summarise or contain notes of the matters discussed.
The FOI Act requires reasonable, not exhaustive, steps to be taken. In my view, a surname is a reasonable search term. The timeframe for the email search reflects the contents of a record dated 9 August 2019, which refers to the applicants’ request for a meeting with one of the former staff. The meeting was held on 29 August and I note that the Council has searched for emails “a few days after” that date. Although the Council could be more specific, I do not intend to query it further on this. I am satisfied with the reasonableness of the email searches and therefore see no reason to direct the Council to take the steps suggested by the applicants.
Finally, the Investigator’s letter to the applicants of 29 November 2021 outlined the Council’s position as to why it does not hold other types of records covered by category 9, which she also described. The applicants did not comment and I see no reason to query the Council further on this matter.
Search - analysis and findings
In summary, the Council’s submissions and responses to this Office’s questions do not give me a basis on which to find that section 15(1)(a) applies. As set out, its searches for records covered by the request generally did not include records held by its legal advisor or, it seems, records on iHouse. Its submissions indicate that it has not taken all reasonable steps to look for records covered by categories 3, 4, 5, 6, 8 and 9 of the request in particular, nor do they enable me to be satisfied that further such records do not exist.
My decision could possibly have been different if the Council had given full and clear answers to this Office’s various questions, which were intended to obtain from the Council all relevant details of its searches. However, its replies often did not address the questions asked, or were vague, or referred to other unclear comments without elaboration.
Therefore, I annul the Council’s effective reliance on section 15(1)(a). I direct it to make a fresh decision on the matter in accordance with the requirements of the FOI Act. I also specify that its decision must address the various issues commented on and highlighted in bold above.
Findings – whether records held by Council members are held by the Council for the purposes of FOI (section 11)
The Council says that it has no access to any records covered by categories 4 and 5 that may be held by elected members. While such records may be contained on its server, it says that it does not hold such records for the purposes of FOI and it refers to this Office’s decision in Case No OIC-55905-Z3X6W3 in this regard. The Council also argues that such records would consist of private papers of a member of a local authority (section 31(1)(c)(i) of the FOI Act).
In short, the decision in Case No OIC-55905-Z3X6W3 noted that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the FOI Act. For records on a server to be deemed to be held by an FOI body for the purposes of FOI, the body must be in lawful possession of those records in connection with, or for the purposes of, its business or functions. Furthermore, it must also be entitled to access the information in the records.
The applicants do not accept that either section 31(1)(c)(i), or the decision in Case No OIC-55905-Z3X6W3, are relevant in this case. They say that any representations made to elected members and their replies relate to the Council’s executive functions rather than the members’ performance of their reserved matters, or matters not relating to the Council’s functions.
Having considered the applicants’ arguments, I see no basis to conclude that such records are held by the Council for the purposes of FOI. I have no reason to dispute the Council’s position that it does not have access to records of Council members that may be on its server. I accept that such records are not held by the Council within the meaning of section 11(1) of the Act. Accordingly, the adequacy of the Council’s searches for such records does not arise.
Findings - records withheld under substantive exemption provisions
This part of my review concerns the Council’s refusal of access to records 17, 21-23 and 34. I will also include record 20 notwithstanding that the applicant did not specify it. This is because the applicant had sought a review of the extent to which the Council had identified records relevant to category 4 and was unaware that record 20 fell into this category.
I will deal firstly with record 17, which the Council withheld under section 35(1)(a) of the FOI Act.
Section 35(1)(a) (confidential information)
Section 35(1)(a) provides that a head shall refuse to grant an FOI request if the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
In order for section 35(1)(a) to apply, it is necessary to show the following:
Record 17 is an email from a member of AGS to the Council, attached to which is a Garda Clearance report. AGS provided the report to the Council at its request under the provisions of relevant housing legislation. The report contains factual information which, in my view, it is not of a sort that would be unknown to the party or parties to whom it relates. The substance of the report does not appear to relate to any third parties, nor has the Council argued this.
The applicants say that access was granted to other information provided by AGS and query how similar information is confidential.
The Council says that it is clear from the circumstances and the content of the correspondence that the information was provided in confidence and on the understanding that it would be treated as confidential. It says it is vitally important to maintain a good working relationship with AGS so as to not prejudice the giving of similar information in the future. However, the Council does not explain why it considers that disclosure of the information would be likely to prejudice the giving to it of further similar information from AGS or other persons in future.
On 12 August 2021, the Investigator invited AGS to make a submission in relation to record 17. She asked it to explain, in particular, how its release would be likely to prejudice the giving of further similar information to the Council. She said that in the event of no reply by a particular date, she would assume that AGS has no objection to release and would proceed accordingly. At the time of this decision, no reply has been received from AGS.
Having considered its contents, the arguments before me, and the absence of a reply from AGS, I have no reason to consider that the disclosure of record 17 would be likely to prejudice the giving to the Council of further similar information from AGS or other persons. Thus, I find that section 35(1)(a) does not apply to the record. The applicant has agreed to exclude any personal details of the AGS member who forwarded the report, which includes the member’s name and email address and an identity number.
Section 37 – personal information
The Council withheld records 21-23 under section 35(1)(a) of the FOI Act. It withheld record 34 under various provisions including section 37(7) (joint personal information). Given their content, and also that of record 20, in my view it is appropriate to consider the application of section 37 to all of these records at the outset.
Section 37(1)
Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (iii) information relating to the employment or employment history of the individual and (xiv) the views or opinions of another person about the individual. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.
The applicants make various arguments regarding the Council’s refusal of records 21-23 under section 35(1)(a). I set out those arguments here insofar as they have potential relevance to section 37. In summary, they say that other records they have been given describe the nature of the contents of records and identify their senders, and cannot be considered confidential in the circumstances.
In relation to records 21 and 22 in particular, they say that the records are personal to them because they relate to the proposed allocation of a house to them, form part of their housing file, and refer and/or relate to them. They dispute whether the records contain information for the purposes of the FOI Act on the basis that they may contain concerns about the allocation of a house to them, rather than statements of facts that were previously unknown to the Council. They say that the senders did not have any legal obligation to provide the information. They say that these emails may have been forwarded to the Council by elected members of the Council who received them originally. If so, they say that the records can only be considered confidential where the elected members shared them with the Council in confidence. They say that the information cannot have been provided in confidence in the first place because they believe that similar messages were sent to many of the Council’s elected members, and because the emails at issue here were forwarded in full.
The applicants say that record 23 was prepared by a Council employee, is part of their housing file and is personal to them. They submit that the Council has not suggested that the record contains third party information. It says that record 34 is a social work report, presumably drawn up by a Council social worker, and therefore relates to their housing needs. Finally, they say that third party information should be redacted to the least extent possible to ensure compliance with their own rights under the FOI Act.
In considering whether the details are covered by the examples of personal information in particular, it is not relevant whether the records at issue or similar records were initially sent to elected officials. It is not relevant whether elected officials forwarded any records in full or in part or explicitly in confidence or otherwise. It is not relevant whether the senders of emails or providers of information were obliged to send them. It is not relevant whether some or all of the details at issue are already or otherwise known to the applicants. Furthermore, I do not accept that “information” for the purposes of FOI is limited to statements of fact that are unknown to the recipient FOI body.
Being mindful of the requirements of section 25(3), I can confirm that, contrary to the Council’s description of record 34, it contains information in relation to the applicants, which was given to the Council by a third party who is not a Council official or elected member. It does not fall under category 4. Records 20-22 are category 4 records but otherwise also contain information regarding the applicants, which was given to the Council by third parties who are not Council officials or elected members. Record 23 is a Violence and Aggression report, created by Council staff, concerning the applicants’ dealings with staff. Having examined all of these records, I am satisfied that they are captured by the above examples of what comprises personal information about identifiable individuals.
In relation to record 23, I have also considered the exclusions to what is personal information where current or former public servants are concerned. These narrow exclusions are also set out in section 2 of the FOI Act. In summary, the following do not constitute personal information: the name of the individual in the context of being a member of staff of an FOI body; information regarding the office, position or functions of that member of staff of an FOI body; the terms upon which the member of staff holds office or occupies a position and records created by that employee in the course of and for the purpose of, the performance of his/her functions.
Generally speaking, the exclusions to the definition of personal information are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members in the course of their work. They also prevent FOI bodies from relying on section 37 to refuse to grant access to details in records that would identify the public servants who dealt with the matters the subject of those records. However, they do not deprive public servants of the right to privacy generally. Having regard to its contents and again being mindful of section 25(3), I do not consider record 23 to contain the type of information that is excluded from the definition of section 37 where a public servant is concerned. I accept that it was created by a public servant and concerns particular events that arose while the public servant was performing work functions. However, I do not accept that the events concerned can be said to have been done for the purpose of performing the public servant’s work functions.
I acknowledge that records 20-23 and 34 contain personal information relating to the applicants. However, I am satisfied that such information is inextricably linked to personal information relating to other identifiable individuals, and that it is not possible to separate out information relating solely to the applicants. For instance, even if names were withheld, I am satisfied that the individuals concerned would be identifiable from the context and content of the remaining material. Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (i.e. joint personal information).
I find that records 21-23 and 34 are exempt under section 37(1) of the FOI Act. I will now go on to consider sections 37(2) and (5).
Section 37(2) - exceptions to section 37(1)
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. I note that section 37(2)(a) provides for the grant of access to personal information relating to the requester. However, I am satisfied that no information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7) and explained why I do not consider that personal information relating to the applicants can be separated from that of other individuals. I am satisfied that the remaining circumstances set out in section 37(2) do not arise.
Section 37(5)(a) - the public interest
In considering section 37(5), I consider that only section 37(5)(a) of the FOI Act is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 I.R. 729, [2011] IESC 26) (“the Rotunda case”). It is noted that a public interest (“a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.
On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in the Enet case. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.
While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.
Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
The applicants do not make any arguments specifically regarding the public interest. However, I accept that the disclosure of records 20-23 and 34 would give them further insight into matters concerning their housing application. This does not mean that there should be no protection of privacy rights of other individuals, however. Furthermore, I am satisfied that placing the withheld details in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicants. I should also say that I do not believe it is appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicants may not be satisfied with the Council’s actions in relation to their housing application or other matters.
Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the records 20-23 and 34 that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
In the circumstances, I do not intend to consider the Council’s reliance on the other provisions of the FOI Act referred to earlier.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the Council’s decision.
I annul its effective reliance on section 15(1)(a) of the FOI Act and I direct it to make a fresh decision on the matter in accordance with the requirements of the FOI Act. I specify that its decision must address the various issues commented on in bold above (i.e. in terms of both its searches generally and its searches for records covered by categories 3, 4, 5, 6, 8 and 9).
I annul the Council’s refusal of record 17. I direct that it be released, subject to the exclusion of personal information therein relating to an AGS member, as agreed to by the applicant and as described above.
I affirm the Council’s refusal of access to any records covered by categories 4 and 5 that may be held by elected members, on the basis that it does not hold such records for the purposes of the FOI Act. I affirm the Council’s refusal of records 20-23 and 34 under section 37(1) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Deirdre McGoldrick
Senior Investigator